Tillery v. Higman Barge Lines, Inc.

Filing 18

MEMORANDUM OPINION AND ORDER transferring this case to Southern District of Texas - Galveston Division; granting in part 6 MOTION to Dismiss 3 Amended Complaint/Counterclaim/Crossclaim etc. MOTION to Stay Proceedings MOTION to Transfer Case to Galveston Division (Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JOSHUA TILLERY,
Plaintiff,
VS.
HIGMAN BARGE LINES, INC.,
Defendant.

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§ CIVIL ACTION NO. 2:14-CV-40
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MEMORANDUM OPINION & ORDER
Pending before the Court is Defendant Higman Barge Lines, Inc.’s (“Defendant”)
Motion to Dismiss or Strike Plaintiff’s Collective Action Claims, Motion to Stay
Proceedings and Motion to Transfer (D.E. 6), to which Plaintiff Joshua Tillery,
individually and on behalf of all others similarly situated (“Plaintiff”), has responded
(D.E. 9), and Defendant has replied (D.E. 15).
I. Background
On February 3, 2012, Ronnie Barnett (“Barnett”) filed a collective action in the
United States District Court for the Southern District of Texas – Galveston Division
alleging that Defendant failed to pay its vessel-based tankermen overtime wages in
violation of the Fair Labor Standards Act (FLSA). Barnett v. Higman Barge Lines, Inc.,
Civil Action No. 3:12-36 (S.D. Tex. – Galveston) (Costa, J.). Specifically, Barnett
alleged that Defendant misclassified its tankermen as exempt seamen under the FLSA.
Barnett requested unpaid overtime for all individuals who were employed by Defendant
as tankermen within the past three years and were paid a “day rate” with no overtime
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compensation. On June 12, 2012, the court conditionally certified a class of tankermen
for the period June 12, 2009, through June 12, 2012. Roughly one year later, on June 17,
2013, Barnett was stayed pending an interlocutory appeal in Coffin v. Blessey Marine
Services, Inc., based upon an anticipated decision by the United States Court of Appeals
for the Fifth Circuit on the precise issue of whether tankermen may be properly classified
as exempt seaman under the FLSA. Coffin v. Blessey Marine Services, Inc., Civil Action
No. 4:11-214 (S.D. Tex. – Houston) (Atlas, J.), No. 13-20144 (5th Cir. argued Jan. 6,
2014).
Eight months later, on February 17, 2014, Plaintiff brought this identical collective
action against Defendant also alleging that Defendant failed to pay its tankermen
overtime compensation in violation of the FLSA. Like the plaintiffs in Barnett, Plaintiff
challenges Defendant’s classification of its tankermen as exempt seaman under the
FLSA. Plaintiff also seeks the same relief, namely back wages and liquidated damages
for a three-year period.
Defendant now moves to dismiss or strike Plaintiff’s collective action allegations
based upon the first-to-file rule. Defendant further requests that Plaintiff’s individual
claims be stayed by the Court until the Fifth Circuit renders a decision in Coffin. In the
alternative, Defendant moves that this entire action be transferred to the Galveston
Division, also based upon the first-to-file rule.

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II. Motion to Dismiss or Transfer
A. First-to-File Standard
The Fifth Circuit follows the first-to-file rule, which dictates that “in the absence
of compelling circumstances, the Court initially seized of a controversy should be the one
to decide whether it will try the case.” Dillard v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 961 F.2d 1148, 1161 n.28 (5th Cir. 1992); Mann Mfg., Inc. v. Hortex, Inc., 439 F.2d
403, 407 (5th Cir. 1971). Federal courts endeavor to avoid duplicating cases in an effort
to avoid waste, avoid making rulings that may “trench on the authority of sister courts,”
and avoid “piecemeal resolution of issues that call for a uniform result.” Superior Sav.
Ass’n v. Bank of Dallas, 705 F. Supp. 326, 329 (N.D. Tex. 1989) (citations omitted). See
also Schauss v. Metals Depository Corp., 757 F.2d 649, 654 (5th Cir. 1985) (“[W]e have
long advocated that district courts exercise their discretion to avoid duplication of
proceedings where related claims are being litigated in different districts.”); West Gulf
Maritime Ass’n v. ILA Deep Sea Local 24, 751 F.2d 721, 728 (5th Cir. 1985) (“[C]omity
requires federal district courts—courts of coordinate jurisdiction and equal rank—to
exercise care to avoid interference in each other’s affairs.”).
In determining whether a subsequently-filed case should be dismissed in favor of a
first-filed case pending in a different court, “[t]he crucial inquiry is one of ‘substantial
overlap.’” Save Power Ltd. v. Syntek Finance Corp., 121 F.3d 947, 950 (5th Cir. 1997)
(quoting Mann Mfg., 439 F.2d at 408). “Once the likelihood of a substantial overlap
between the two suits has been demonstrated, it is . . . no longer up to the second filed
court to resolve the question of whether both should be allowed to proceed.” Cadle Co. v.
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Whataburger of Alice, Inc., 174 F.3d 599, 605 (5th Cir. 1999) (internal brackets and
quotation omitted). Instead, the proper course of action for the second-filed court is “to
transfer the case to the [first-filed] court to determine which case should, in the interests
of sound judicial administration and judicial economy, proceed.” Id. at 606.
B. Analysis
Defendant moves to dismiss Plaintiff’s collective action claims, or, in the
alternative, to transfer the entire action to the Galveston Division because this case and
the Barnett case raise identical legal issues and seek to represent an identical class.
Defendant maintains that dismissal and/or transfer would further judicial economy, avoid
substantial burden to the parties, and avoid conflicting opinions between various
divisions within this district. Plaintiff argues against the application of the first-to-file
rule because the opt-in period in Barnett closed more than 19 months ago, and none of
the plaintiffs from Barnett can or will be involved in the above-captioned lawsuit. As
such, Plaintiff claims “there is no overlap whatsoever between the Barnett case and this
one,” and the rule should not apply. (D.E. 9, p.16 (emphasis in original).)
The Fifth Circuit has made clear that “[c]omplete identity of the parties is not
required” for purposes of the first-to-file rule. Save Power, 121 F.3d at 951. Instead, the
Court must consider whether the issues raised in both suits substantially overlap. Id. at
950. As set forth by Defendant, both lawsuits involve the exact same legal issue: whether
Defendant’s classification of its tankermen as seamen is in violation of the FLSA. The
Court therefore finds that “[i]f these actions are not tried together, this would lead to
judicial waste as well as piecemeal resolution of the FLSA issues, risking inconsistent
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judgments.” Solis v. Gate Guard Servs. L.P., et. al., Civil Action No. 2:11-41 (S.D. Tex.
Mar. 22, 2011) (Jack, J.), D.E. 18 at 5 (citing Save Power, 121 F.3d at 951).1
Plaintiff further argues against transfer to the Galveston Division because he and
other potential opt-in plaintiffs live and work in the Corpus Christi Division.

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plaintiff in Twin City similarly argued that the court should consider factors related to
venue under 28 U.S.C. § 1404(a) in determining whether compelling circumstances exist
justifying departure from the first-to-file rule. Twin City Ins. Co. v. Key Energy Servs.
Inc., 2009 WL 1544255, *6 (S.D. Tex. Jun. 2, 2009) (Lake, J.). The court rejected this
claim, recognizing that the Fifth Circuit has “made clear that it is the first-filed court . . .
that should make the § 1404(a) determination.” Id.
In light of the similarities of the instant case to the first-filed Barnett case, the
Court finds that transfer to the Galveston Division is proper.
III. Motion to Dismiss or Strike and Motion to Stay Proceedings
The general rule is that “the court in which an action is first filed is the appropriate
court to determine whether subsequently filed cases involving substantially similar issues
should proceed.” Save Power, 121 F.3d at 950. In fact, the court with “‘prior jurisdiction
over the common subject matter’ should resolve all issues presented in related actions.”
West Gulf Maritime Ass’n, 751 F.2d at 730 (quoting Mann Mfg., 439 F.2d at 408)
(emphasis added).

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. The risk of inconsistent judgments is also the reason why Barnett is currently stayed pending the Fifth
Circuit’s decision in Coffin.

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The Galveston Division is the appropriate court to determine whether Plaintiff’s
second-filed collective action claims should be dismissed or stricken and whether the
entire second-filed action should be stayed pending the Fifth Circuit’s decision in Coffin.
The Court therefore declines to rule on Defendant’s motion to dismiss or strike and
motion to stay proceedings.
IV. Conclusion
For the reasons stated herein, Defendant’s Motion to Dismiss or Strike Plaintiff’s
Collective Action Claims, Motion to Stay Proceedings and Motion to Transfer (D.E. 6),
is GRANTED IN PART. The Court hereby TRANSFERS this case to the United
States District Court for the Southern District of Texas – Galveston Division, where
related litigation is pending and styled as Barnett v. Higman Barge Lines, Inc., Civil
Action No. 3:12-36.

ORDERED this 29th day of April, 2014.

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NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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